Ouster clauses will now be open for challenge, say lawyers

 

Chief Justice Tengku Maimun Tuan Mat says every legal power must have legal limits and it is for the courts to determine whether such limits are in accordance with the law. (Bernama pic)

PETALING JAYA: About 40 Parliament–made laws ousting judicial power to review the decisions of public authorities could be subject to legal challenges following a landmark Federal Court ruling on Monday, say lawyers.

They said the aggrieved party must, however, mount a challenge and cite this case as a precedent.

Among them is Article 150 (8) of the Federal Constitution, which is an ouster clause to stop parties from challenging the Emergency proclamation by the Yang di-Pertuan Agong (following the advice of the government).

Lawyer Bastian Pius Vendargon said the five-member apex court ruling had paved the way for a challenge on whether that provision was valid or otherwise.

“Ouster clauses have been generally viewed as infringing on the doctrine of separation of powers, which is the cornerstone of all Westminster-type constitutional models,” he said,

He said that in ordinary legislation, an aggrieved party could seek judicial review for decisions or omissions, but there was a doubt where the constitutionality of a legislative provision came into play.

“Where the ouster clause itself appears in the constitution, then this latest ruling paves the path for an appropriate challenge,” he said.

Vendargon said this in response to the Federal Court decision which allowed a habeas corpus appeal by a man held under preventive detention in Simpang Renggam for alleged involvement in organised criminal activities.

Chief Justice Tengku Maimun Tuan Mat, in her broad grounds, remarked that every legal power must have legal limits and it was for the courts to determine whether such limits were in accordance with the law.

“If the courts are not permitted to decide the perimeters of those powers due to ouster clauses, it will be tantamount to an incursion into judicial power and is therefore violative of separation of powers and the Rule of Law, as espoused in Article 4(1) of the constitution,” she said.

The top judge said the judiciary was required to check and balance the exercise of executive power and ouster clauses sought to interfere and limit the exercise of the basic tenet of the judicial function.

“We unanimously find Sections 4 and 15B of the Prevention of Crime Act (Poca) 1959 to be unconstitutional and they are hereby struck down under Articles 121 and 4(1) of the constitution,” she said, adding that the authorities had no legal basis to detain M Nivesh Nair.

Section 4 lays down the procedures for magistrates for the granting of remand orders to the police.

Meanwhile, Section 15B, which is an ouster clause, restricts judges from inquiring into the grounds for detention.

Ramkarpal Singh, who is also the Bukit Gelugor MP, said this latest ruling would come in handy as five elected representatives have gone to the Federal Court to challenge the Emergency ordinance.

Late last year, the Court of Appeal dismissed the appeals of the five, stating that the court was barred under Article 150 (8) from questioning the King’s decision to proclaim the Emergency and enact ordinances.

Meanwhile, lawyer J Ravin said an ouster clause in the Dangerous Drugs (Special Preventive Measures) Act 1985 could be intensely challenged to be struck down as it was similar to Section 15B of Poca.

“I believe aggrieved parties will also challenge the 40-odd laws passed by Parliament, which oust the courts from scrutinising the decision of ministers and public officials,” he said.

Lawyer Rafique Rashid Ali said ouster clauses were ridiculous in some legislation as they had nothing to do with public order or security.

Among them are the Dental Act 1971, the Child Care Centre Act 1984, and the Farmers’ Organisation Act 1973.

“Ouster clauses also undermine the rights of aggrieved parties to access justice,” he added. - FMT